Public Bill Committee

[Mr Charles Walker in the Chair]

Clause 2

Amendment moved (this day): 14, in clause2,page5, line32,at end insert

Charles Walker: With this it will be convenient to take amendment 22, in clause3,page7,line32,at end insert

Kevin Brennan: Good afternoon, Mr Walker, and, through you, good afternoon to the Committee. Before we adjourned, we were discussing amendments 14 and 22 relating to clauses 2 and 3 on the ability to search the contents of electronic devices and mobile phones. We were debating the implications of such action, and I was saying that, in some cases, it could be fairly innocuous but that, in other cases, students or adults might have private information on their mobile phones and electronic devices. We need to understand the implications of the new provisions for the protection of teachers and lecturers who might undertake confiscation measures and look through information, deciding whether to delete it or otherwise, as well as the implications for the privacy of the individual, whether a child or an adult, and how it relates to their broader rights under other legislation.
How could teachers and lecturers prove that they had not misused the power under the clause? What safeguards are in place for them in such circumstances? The Minister will want to tell the Committee his thinking on the matter and explain how teachers and lecturers can be protected from accusations, as well as how individuals can be protected from teachers and lecturers potentially misusing such powers. Not everyone is a saint, and we must be absolutely clear that we have minimised the potential for the powers to be misused. What safeguards are in place? I understand fully the Government’s desire to avoid bureaucracy, and we discussed that earlier. There is good bureaucracy as well as bad bureaucracy. We need to wipe out bad bureaucracy, but ensure that we do not take away protections afforded by the good bureaucracy.

Stephen McPartland: The shadow Minister has raised concerns about the misuse of powers by some of our professionals, whom we should trust on the front line. However, as drafted, the amendment would give a greater blanket protection to all teachers than the protection afforded under the Bill. It would not discourage anyone from misusing such powers.

Kevin Brennan: I was appalled as the hon. Gentleman by the swiftness with which I have become used to how such things are done in Opposition, but it is not uncommon to draft an amendment in order to discuss the principles of a clause. The Minister might point out later, with the aid of legal advice, how flawed the amendment is. There might well be flaws in some of our amendments. I accept that, but imperfect as they might be, it does not take away from the fact that we need the answers to the questions asked during our debates.
I understand the need to avoid bureaucracy and to prevent the misuse of electronic devices in our schools and colleges. I want to support the Minister by saying that he is right that we should be concerned about such misuse. We should be appalled and concerned—[Interruption.] Even in Committee, occasionally, Mr Walker, we should be concerned about the potential misuse of mobile phones and electronic devices. I had better check that mine is switched off, if I can find it.
Such devices are misused and there is that potential. We know of instances of teachers being filmed without their consent during the course of lessons, when pupils are deliberately acting up. Thanks to the Conservative party, we know of some examples of teachers filming their pupils without their consent, but we shall not stray into that area. We know that pupils have misused mobile phones in order to film teachers inappropriately, and that electronic devices and the use of images can be used for cyber-bullying between pupils and by pupils of teachers. Such behaviour is completely unacceptable, and the Minister is right to think about how best to deal with the phenomenon which, obviously, has become more prevalent in recent years, as electronic devices have become more sophisticated.

Graham Stuart: One of the great benefits of this form of scrutiny is when people such as the hon. Member for North West Durham bring their personal experience to bear in the debate. In that spirit, in the shadow Minister’s own professional career, were there ever any instances when he perhaps exceeded the rules and abused his position of power?

Kevin Brennan: I think I would take the fifth amendment, if it existed in our constitution. I am being tempted to implicate myself in all sorts of ways. To try and answer the hon. Gentleman in the spirit probably intended, I suspect that I did things as a member of staff that might not technically be correct, but nobody’s perfect.
It is up to the Minister to show that he has thoroughly thought through the implications of his proposal as it stands. I offer him our strong support in wishing to counter cyber-bullying and the misuse of electronic devices, but we want to know that what he is doing here will work and will not put anyone into any danger, fundamentally infringe any important rights or increase the likelihood of legal challenge. We are happy to work with him to consider how best to deal with the issues, but through the amendments I want to probe in depth exactly what the clauses do.
For example, under the provisions, can teachers look through mobile devices at will, albeit with some reasonable suspicion? Can they go right through such devices? Or does the Minister expect that the head teacher or some senior member of staff would have to be present while that was undertaken? Should students have any particular rights of veto with regard to certain files in a mobile device, were they present and able to indicate their unhappiness about certain areas of the mobile devices being explored? Let us bear in mind, as I have said all along, that we are talking about adults and not only children.
On that point, amendment 22 refers to further education—anyone from the age of 14, possibly up to 18 and beyond. The National Union of Teachers has, for example, expressed some concern in its submission about that provision as it relates to FE. Sections 1 to 3 of the Computer Misuse Act 1990, regardless “of an individual’s motivation”, make it a criminal offence—I shall paraphrase the list of three points—to gain access to computer files or software without permission, such as using someone else’s password to access files; to gain unauthorised access, as above, in order to commit a further criminal act, such as fraud, although hopefully that is not what we would be talking about in this case; or to impair the operation of a computer or program, for example with viruses or denial of service attacks. Again, we hope that the last point would not be the provision relevant to us, and that we are mainly concerned with the first one.
Ministers need to clarify how these provisions will relate to existing legislation, particularly for college principals and other staff, who are expected to seize electronic devices on which there might be indecent imagery and other material. This relates to a point I made earlier; could the Minister clarify for further education institutions as well for schools whether staff would be liable for prosecution if they opened and viewed such material?
The NUT also says in its submission that, as the Bill does not afford the same protection to college staff as it does to school teachers in relation to malicious allegations, it is particularly important that staff conducting searches in colleges are protected from potential prosecution or litigation. I would like the Minister to deal with the fact that college staff will not be protected by the Bill in the same way as school staff, and yet they will be given exactly the same powers in relation to searching through mobile devices and other electronic devices belonging to their students. It should be remembered that college staff may be dealing with adults.
Does the Minister envisage all teachers in schools having these powers? If not, how would they be trained to ensure that they could handle situations such as those described this morning appropriately? As the clause stands, there is the potential for serious risk to student privacy, and also a risk to staff culpability if they are not well-trained or inadvertently view certain images. The amendment would minimise these risks, and I look forward to hearing the Minister’s response.

Dan Rogerson: It is a pleasure to serve under you today, Mr Walker—that is the first time I have had an opportunity to say that today. I want to make a brief contribution during the discussion of this amendment as we are not having a stand part debate.
People outside Parliament might have concerns when looking at the sort of powers we are discussing, particularly those that try to bring legislation up to date with regard to electronic devices. Many young people have access to such devices throughout the school day, though whether or not everyone thinks that is a great thing, particularly for much younger students, is another issue.
When I first heard of this aspect of the Bill I was concerned that teachers would, for example, be given the right to access data on a mobile phone, which could include photographs, videos and all sorts of text files, as the hon. Member for Cardiff West has already said. However, having heard the evidence prior to entering this stage of proceedings, what I found most persuasive was the argument that if staff have reason to suspect that a device contains something untoward and do not have these powers, the only thing that they can do is invite the police to look at it.
If a young person has a compromising photograph of another student that they should not have taken—I am not talking about hard-core child pornography, which is a completely different matter—and there is reason to suspect that it might be used for a purpose such as bullying or intimidation, even if that is not the intended purpose, my concern is that the teacher has the power to deal with it without recourse to the police. It is a hugely important issue for that young person’s future career and development—for example, being able to travel to some countries or enter particular forms of public service—if they have a criminal record. That is where there is perhaps scope for this power and that is why I have been persuaded that, if it is properly circumscribed, it could have some benefit.

Kevin Brennan: Is the hon. Gentleman saying that if a teacher suspects that a criminal offence may have been committed by a pupil they should not report it to the police?

Dan Rogerson: No. I am no legal expert and I am certainly not a policeman, who would have all the various offences at his fingertips. However, there are probably circumstances that could be managed in the school setting, but if the police became involved it might lead, for example, to a caution for intimidation or whatever.

Kevin Brennan: But of course a caution is an admission of guilt by an individual of the commission of a criminal offence.

Dan Rogerson: That is right and I have seen in my own constituency instances of the police being invited into school in a low-key way, to talk to some young people who might be at risk of committing an offence—let us say—to talk to them about their behaviour and to ensure that their behaviour was dealt with at an early stage, so that there was no repetition. That is a very powerful approach and it is a very useful way of correcting a young person who might be about to go down a path that could lead to something much more serious.
I am concerned that if we do not have some sort of power that allows teachers to deal with these forms of technology that increasingly are being carried around by young people in school, the only option to explore whether an offence has been committed is to involve the police. Again, that is perhaps not the best use of the police’s time and it might also escalate an incident unnecessarily.
When the Minister responds to the debate that has been initiated by the hon. Member for Cardiff West, I hope that he can reassure us about the guidelines and controls that are set out in the legislation. Indeed, they will be set out in his remarks, which will then inform how things are interpreted later. I hope that he can reassure me and hopefully the many people who will have recourse to read his remarks in Hansard that what is intended is a reasonable power that will not have huge implications in terms of data protection, and a sensible precaution to ensure that the police are not involved unnecessarily.

Iain Wright: With regard to students in further education colleges, where there could be a possibility of a search taking place, does the hon. Gentleman think that those students could say, “I don’t want you to look at these specific files on my electronic device”? Is that fair and reasonable in helping to safeguard both the interests of the student and those of the tutor?

Dan Rogerson: We are getting into the realms of conjecture that we were in earlier and I accept that during scrutiny of a Bill these are the sorts of issues that are discussed. However, I am looking for the Minister to set out exactly what the intention is behind this measure, to reassure people that it is not a power that will be used lightly and that it will be used only where there is reasonable evidence to lead teachers to believe that they ought to step in. Of course, as the hon. Member for Cardiff West has already said, if we are talking about a serious criminal offence, the police would have to be involved at that stage. There would be no alternative. However, I hope that hon. Members will agree that there are different levels of behaviour and that, if possible, guidance could be given by a member of staff, head teacher or whoever, to prevent things from escalating beyond a certain level.

Kevin Brennan: I accept the hon. Gentleman’s point that there has to be some discretion for teaching staff when dealing with situations within schools. On the point that he made about data protection, does he think that it would be useful if the Minister could tell us what consultations there have been with the Information Commissioner about this issue and whether any views or advice have been received by the Department from the commissioner about the powers in these clauses?

Dan Rogerson: The hon. Gentleman raises a reasonable point. I hope that all Departments have regard to those kinds of issues when they look at legislation, guidance, and practice. Additionally, there is the assurance of counsel’s opinion on how such things might be perceived in terms of human rights and so on. I am sure that that is the sort of thing that the Department will have taken advice on before moving on to this stage.
I intended my contribution to be brief, although I always welcome interventions from Opposition Members. Essentially I just wanted to set out my original reservations. I hope that the Minister can reassure us that the power will be reasonably extended to members of staff in education institutions, to prevent certain young people being pushed towards, shall we say, encounters with the police. That would not be the best use of police time, and it would also be unfortunate for those young people.

Mark Durkan: The amendment is helpful in allowing us to think through exactly the sort of scenarios in which the power might be exercised, and the difficulties and dilemmas that might be created. Unfortunately, the amendment is limited, in the sense that the cover that it would give a member of staff would apply only to the examination of the data or finds, and not to erasure, which my hon. Friend the Member for Cardiff West talked about when he spoke to his amendment. That may be because a separate subsection deals with the issue of erasing material from a device.
There are two separate issues: the examination of material and erasing material, which could lead to contentious considerations, such as whether a member of staff would be right to erase material, and whether the right material would be erased. If there is such a condition as e-dyslexia for IT users, I have it. I can manage to delete a function on my mobile phone, thinking I am coming out of it, which is why I am struggling to get alarm functions working on my BlackBerry and so on. A teacher who is not trained, but who has good cause to ask for, or take hold of, a device might, in trying to go through it, come across something. There can be difficulties, though, if people are unfamiliar with various devices. Not all things that work a particular way on one brand of device work the same way on another. People could get themselves into trouble simply by trying to erase something that it might be correct and justifiable to erase if they end up being accused of deleting far more personal, family-related material. That is something that we need to think about, given that in debating the amendments we are effectively talking about all the implications of the wider clause.
Amendments 14 and 22 relate to clause 2 in respect of schools, and clause 3 in respect of further education institutions. We have to remember that some of the atmospherics and circumstances will be quite different in those two situations. Clause 2 has clear reference to school rules; there is no equivalent reference in clause 3. In many cases, staff in further education institutions might have less clear cover or guidance at a corporate level from their institution. That is why we need to be careful that when we legislate for what staff can do in those situations, we do not assume that they will be covered by clear guidance, well-publicised school rules and so on. Also, as many further education institutions are multi-site, staff may not have guidance, back-up or support immediately available to them. That might be a reason why sometimes people will need to act on their own in a given situation; I accept and realise that.
The seizure of electronic devices, the inspection or examination of them, and the possible erasure of material brings me back to an issue that I touched on the other day. In proposed new subsections (6E) and (6F) in clause 2, and proposed new subsections (6C) and (6D) in clause 3, the Bill provides for someone who has seized a device to examine it, make a decision to return, dispose of or retain it, and erase the material on it. I suppose that the erasure can happen in any situation—whether the device is returned, disposed of or retained.
There is, however, no indication in clauses 2 and 3 of what the purpose of retention might be; is it the need to bring the material to the attention of college authorities, or other relevant authorities, if the need arises? There might be circumstances in which a member of staff believes it best to return a device as soon as possible, with material erased, but wishes to retain a copy of the material as part of a wider investigative effort on the part of the school or other authorities—for example, there might be concern about ongoing sexual harassment in a school or on a particular site.
We must remember that as electronic devices change, they increasingly become display rather than personal information devices, and tablets and iPads are being used to splash posters. I have been told that in the Northern Ireland situation they are being used for quick displays of emblems that are deemed to be proxies for political expression and identity, and can be used provocatively. We can understand how pornographic images might be displayed on such devices, not for the lewd gratification of the holder of the device but as a visual aid to sexual harassment, with images perhaps being composited with photographs. We can understand that there might be circumstances in which teachers and other staff have cause to try to intercept devices, and what they do with the material becomes important.
I would like some clarification on whether the guidance that we are told the Secretary of State will issue on the powers will delineate and differentiate between retention of the device, for whatever purposes, and retention of the material. I am conscious of the shadow Minister’s point about how the law stands on people accessing, viewing and even copying certain material, even if it is done with a view to making it available to school, college or child protection authorities, or to the police. We need to ensure that whatever the extent of powers that we give, and whatever their purposes, certain protections are there. The shadow Minister makes, I think, an honest effort with his amendment to try to ensure that there are protections for staff who will have to deal with many complex issues in myriad circumstances, and we will not be able to predict or pre-empt them all because technology will race way ahead of our imaginations. We therefore need wider thought on the matter, and as the hon. Member for North Cornwall said, it would help if the Minister gave us some indication of how the Government envisage the guidance being sufficient to cover many of those points.

John Hayes: I can imagine no greater joy, Mr Walker, than serving under your chairmanship in this distinguished company, scrutinising this important legislation; or there is, at least, no greater joy available in the Committee corridor this afternoon.
This is an important debate on important amendments. Amendment 14 would restrict to senior members of staff the power to erase data from electronic devices. In addition, it would create a protection from any criminal liability that might result from such action. Amendment 22 would provide in the same way for sixth-form and further education colleges. I understand the concerns on these subjects. The amendments raise important issues about the Bill’s purpose, which is to recalibrate—if I can put it that way—the balance of authority in schools, and give rise to perfectly proper consideration of how that should be mitigated in the interests of good practice, privacy, and so on. Those are serious matters that should not be taken lightly.
It was made clear in the evidence sessions—for the sake of brevity, I will not go through this exhaustively—that mobile telephones are increasingly being used in schools to harass and bully teachers. Indeed, the hon. Member for Foyle has just made the point that mobile telephones are not what they were; they can be used to display material of all kinds. The shadow Minister acknowledged the growing significance of cyber-bullying, which is clear from representations that we received and from witnesses such as Sir Michael Wilshaw, who said:
“Cyber-bullying is the curse of many of our schools. Facebook, YouTube and the stuff that sometimes appears on mobile phones are real issues”.––[Official Report, Education Public Bill Committee, 1 March 2011; c. 47, Q98.]
I ought to declare an interest, as the shadow Minister was kind enough to mention his prior membership of the National Union of Teachers: I am a member of the Association of Teachers and Lecturers, which has surveyed on cyber-bullying and found there to be a significant and growing problem in schools.
According to Bullying UK, 14% of young people, or one in seven, have been threatened or harassed via mobile telephones. Each of the 30 sixth-form colleges that responded to a snapshot survey in February 2009 stated that there had been instances of students being subject to cyber-bullying at their institutions in the past 12 months. There is not, therefore, much debate about the significance of cyber-bullying.
Without a specific power to delete inappropriate images, teachers and college staff would be limited simply to delaying any bullying or harassment for which the images might be used until the confiscated device were returned to its owner. The provision is about changing good practice and redefining what is appropriate in the light of the technological changes that have altered the character of bullying. Such changes have altered the nature of the worst examples of what pupils can do to other pupils, students can do to other students, and staff can suffer at the hands of the more malevolent among those they teach.
I want the Committee to ask whose best interests are served if a teacher learns that pupil A has taken an inappropriate picture of pupil B, but is powerless to act when, at a later date, pupil A publishes that image on the internet. Is it in order to prevent such situations? On balance, I believe that is justified, and we should include a provision to that end in the Bill.
A number of issues have been raised to do with the character of the mitigation that I have described. I shall deal with the second part of the amendments, which we can clear up with appropriate rapidity, given our determination to move through the Bill carefully but speedily. The shadow Minister asked whether a teacher who searched a phone under the provision and saw child pornography—which, clearly, is seriously unlawful—would be left open to prosecution. The answer is no. I do not really need to add more, because that is well supported in case law. In those terms, teachers are like other professionals who might encounter material of that sort in the way that we described. I know that this preoccupies the hon. Gentleman—I will not say night or day, or in the still of the night, but it certainly preoccupies him. He is right to ask the question. It is important to say that in our view a teacher would not be subject to prosecution in those circumstances.

Kevin Brennan: I am grateful for the Minister’s assurance on that point, which is very helpful. He said that the point was well established in case law. Would he undertake to write to members of the Committee with the details of that case law, so that we can be assured of the information that backs up his assertion, without having to go into it all here?

John Hayes: Yes. I do think it is important that Ministers respond to the proper enquiries of Committee members. I would be happy to do that. Perhaps I can go one step further, and be more generous than he was expecting me to be: I also think that in the guidance that we said we would publish—this is implicit in what we are debating—we need to give an assurance that we are clear about the interface between this change in the law and the other legislation referred to by the hon. Gentleman. We need to be clear about that marriage, because the provisions do, as the hon. Gentleman suggested, have a perceived connection with other pieces of legislation.
I shall try to buttonhole this aspect of the amendments once and for all. In the circumstances that have been hypothetically described, it would be for those bringing proceedings to prove that a teacher had acted unlawfully. The teacher would seek to establish in their defence that they had looked at data in the lawful exercise of the power given to them under the provision. It would be for the court considering all the facts of that case to come to a conclusion. This is a straightforward matter, and the hon. Gentleman will know that a test of reasonableness is well established in law. Indeed, he will have debated many Bills in this House where that very test of reasonableness has mitigated what might otherwise seem to be a power that could be used inappropriately. I am happy to write on both those subjects, and I think that will clarify them.

Kevin Brennan: I am grateful to the Minister for agreeing to write. Of course, the reasonableness test is well established. The difficulty—I think Members on both sides of the House sometimes feel this—is that what Members of this House regard as reasonable is not always viewed in the same way by a High Court judge, much to our frustration as law makers. Will the Minister also—he may have been coming on to this—refer back to the intervention I made on the hon. Member for North Cornwall about what consultation and discussion there has been with the Information Commissioner?

John Hayes: Yes, I will. In doing so, I draw the attention of hon. Members to the memorandum that the Government submitted to the Joint Committee on Human Rights, in which we set out how the provisions are compatible with rights under that convention. I think that would be a helpful element in the discussion.
One effect of the amendment would be to restrict to senior members of staff the power to act in the way that I think we all agree will sometimes be necessary, given that circumstances have changed. The law already requires the head teacher or college principal to authorise members of staff before they conduct a search under the powers. The issue raised in the exchange that we enjoyed about whether we are talking about all staff, some staff, or one member of staff, is dealt with in the Bill, in that the person exercising the power would be authorised to do so.
Nothing in the provisions would prevent a head teacher from authorising only senior staff members if they thought it right to do so. There was some discussion of that in the evidence sessions—the hon. Gentleman will no doubt point it out if I do not anticipate his possible intervention—but in the end, the decision lies with head teachers and principals, and we should not prevent them from authorising other staff if they judge it necessary and appropriate to do so. They are, in the end, in a better position to take that decision than we in the Committee Room can be.
In a sense, the issue lies at the heart of our considerations. I will use this opportunity to make the broader point that, as Disraeli said, duty cannot exist without faith. Our duty, based on faith in professionals and school and college leaders, is to trust them to exercise their duties in a way that passes the test of reasonableness that I described a few moments ago.

Pat Glass: The point has been made a couple of times that this is a philosophical step on the Government’s part and that it is about giving powers and trusting head teachers, but I am afraid that the Government cannot have it both ways. The recent White Paper said clearly, “We will give powers to head teachers. We won’t tell them what to teach.” The very next line said, “You will teach reading by teaching phonics.” Surely it is for the teacher in the classroom to decide whether the child learns best with look and see or with phonics. Yes, try phonics, but the Government cannot say that they will give powers to teachers and at the same time tell them how to teach.

John Hayes: You are in charge, Mr Walker, and it would be wrong of me to be encouraged down a tributary—

Charles Walker: I do not want you to stray too far, Mr Hayes.
 Mr Hayes   —on the subject of synthetic phonics, on which the Minister of State, Department for Education, my hon. Friend the Member for Bognor Regis and Littlehampton is altogether more expert than I am. We have debated that issue.
Begging your indulgence, Mr Walker, I should have said at the outset what an immense pleasure it is to be back in harness with my hon. Friend, on this side of the Committee Room this time, after so many Bills together. It is also a great pleasure to face the hon. Member for Cardiff West, an old sparring partner, and my former neighbour and friend, the hon. Member for Hartlepool.
Moving on, I will not be encouraged to speak about how people learn to read and write, any more than—

Mark Hendrick: What about powers?

John Hayes: That is a sedentary intervention. Does the hon. Gentleman want to make a formal intervention?

Charles Walker: It is up to the Minister whether he wishes to give way.

John Hayes: I do not want to get into the habit, Mr Walker, as it will become contagious. I suppose all habits are contagious, come to think about it, but there we are.
Before I deal with one or two particular points raised by the hon. Member for North Cornwall and others, another issue in the amendments that has come to the Committee’s attention is the training of staff. Decisions on the training of staff must be made by the head teacher and/or principal, taking into account the school’s circumstances and the character of the management team and the entire staff. The guidance that we offer will deal clearly—it is implicit in the part of the Bill that we are discussing—with issues of reason and law, but ultimately, the discretion of a head teacher or principal to deal with such matters seems central. I do not want to exaggerate the differences between people in the Committee, but that might be a telling difference between our perspectives.

Pat Glass: When I talked about training yesterday I was clear that there were two issues. One is about giving powers around search and restraint to teachers without training, which is very dangerous. I would expect any teacher expected to search or restrain a pupil would have adequate training. The second is about the cost of that training. It is incredibly costly, ongoing and annual. I am interested to know whether any additional funding will be going into schools to cover those costs.

John Hayes: I did wonder whether such a view might emerge in Committee. I took a look at the guidance on search powers issued by the previous Government. They are rather different powers but, none the less, are an acknowledgment of the need to provide teachers with appropriate authority to take action in the case of what could be very serious circumstances in schools. That guidance made it clear that
“school staff, especially senior managers, are highly skilled and experienced in managing the behaviour of young people in their charge. This includes the ability to resolve difficult confrontations.”
The previous Government were clear that in dealing with matters involving weapons much trust has to be placed in those who manage, as a school teacher, our children and adults. That trust is shared by this Government. We do trust people to make the right judgments.
The hon. Member for North West Durham is right, of course, that it is almost inconceivable that a good head, a good manager, in authorising staff—which is part of this—would not expect them to be equipped with the necessary skills to do the job. I take that as symptomatic of appropriate management, and one would not disagree with that. In the end, these are matters of discretion.

Mark Hendrick: The Minister rightly referred to the fact that the previous Government gave a great deal of trust to teachers in dealing with search powers under previous legislation, of which teachers were required to be cognisant.
The powers we are talking about go considerably further, in that teachers would be allowed to search pupils. There will be issues around contact with the pupil, clothing, and what is allowed to be searched. The trust issue was meant to relate to training perhaps not being necessary in the past. However, the issue around costs would have been dealt with by the previous Government, because obviously our budgets, as the Government always say, were considerably more generous in spending on education and other areas. In the current climate we are looking at cuts.

Charles Walker: Order. We are straying outside the terms of the debate.

John Hayes: I am glad you said that, Mr Walker, because it prevents me from so doing. I want to deal with the nature of data.

Mark Hendrick: On a point of order, Mr. Walker. It is not only my question that the Minister is now refusing to answer. The Minister totally disregarded the question about powers for teachers and went on about other stuff.

Charles Walker: Order. That is not a relevant point of order. I have made a ruling and we are moving ahead.

John Hayes: Of course, I am guided by you in these matters, Mr Walker. At the risk of being on the wrong side of you at this early juncture, I would simply ask the hon. Member for Preston to do a bit of research on whether the previous Government provided money for training in those circumstances.
I come to the data stored on an electronic device and their retention. That important matter was raised in earlier discussions, and I want to clarify our position. If a school keeps an electronic device, it will become the data controller of the data on the device and must deal with the information in compliance with the data protection principles under the Data Protection Act 1998. I do not have a copy of the 1998 Act with me, but, from memory, I believe that it defines eight principles regarding the character of data protection. If it is helpful to Committee members, I am more than happy to make available the relevant information, so that they can be assured about the relationship between those principles and what we are discussing today.
There is clarity about the purpose, which is the matter raised by my hon. Friend the Member for North Cornwall. The purpose is to give sufficient power, with a test of good reason, to teachers so that they can act in a way appropriate to deal with a significant and growing problem, the shape of which has changed dramatically as technology has changed, and the use of technology, both for good and malevolent purposes, has changed with it. The appropriateness of the power is clearly set down in the Bill, which says that there has to be “good reason” to seize an item and examine any data. In the case of retaining or disposing of data, again, there must be “good reason” to do so. Further than that, the person concerned—the teacher—
“must have regard to any guidance issued…by the Secretary of State.”
That guidance will become available shortly and, as I described, will set out some of the appropriate circumstances.
I hope that, having dealt with that aspect of the amendment, and given a firm assurance about prosecution, which I agreed to write to the Committee about—

Mark Durkan: Will the Minister address an additional point? What happens if a teacher or member of staff in an FE institution takes a device and the student makes the point that it is not theirs? In the case of a school pupil, it might belong to their parents and they have the use of it, or, in the case of somebody who is in college part-time, the device might belong to their employer. A device taken from a student might have material on it that belonged to their parent, and the parent might mount a Max Mosley-style challenge to the invasion of their privacy. Where would teachers be then? Are not some of the points the shadow Minister raised worth further consideration?

John Hayes: The hon. Gentleman makes a good point. He did not make this point, but forgive me if I extend his argument: it might be that students were using a device that the school owns, in the case of a computer. The powers the teacher would enjoy in those circumstances would be the same. Imagine someone using a computer to exchange information of an inappropriate kind or send it to other pupils. The teacher would need to act in the same way and with the same tests I described to deal with it. The ownership of the device in those circumstances would not be the salient point; it would be the behaviour of the pupil in using the device for a purpose that the teacher identified as inappropriate.

Mark Durkan: I take the Minister’s point, but it does not answer the question, it sidesteps it. The clause is about devices that are taken from pupils and then either retained, returned or disposed of. It does not deal with school property.

John Hayes: But the point is that because it includes retention, return or disposal, in the case of a device that did not belong to the pupil but to another party—it might be the school itself—clearly it would not be returned to the individual. It is not really a question of ownership but of use. However, given the point that the hon. Gentleman made about it possibly being someone else’s phone, I am more than happy to look at that again on the basis of what he has just described. Perhaps I can come back with further clarification.

Kevin Brennan: I am grateful to the Minister. The hon. Member for Foyle has raised an interesting point and it would be helpful if the Minister could deal with it now or later when he receives inspiration. It is quite common for schools to allow students to have mobile phones. It is also common for schools to ban them. Some schools think that they have safety benefits and are good for keeping in touch with parents. As the hon. Member for Foyle said, a mobile phone may have been borrowed from a parent. If such a phone were seized under the powers, would the teacher have an absolute protection from any legal action by parents in relation to material that may be contained on that phone?

John Hayes: That is a good point. For the sake of brevity, I will write to the Committee about that important point, because it requires consideration and clarification. Clearly, issues of whose device it was and who was using it would be taken into account by the authorised person in making a judgment about the actions to take. I take that as read. But there is an important point about the relationship between use and ownership that requires clarification.
Even given my immense generosity, my determination not to become excessively loquacious and the lucidity of my argument, I know that the hon. Gentleman who tabled the amendment wants to speak.

Kevin Brennan: The matter of the Minister’s generosity is for others to decide rather than him, but I have always found him to be an extremely generous person. I cannot speak for all members of the Committee, but no doubt they will give their own views on that subject as we progress.
On amendments 14 and 22 and the Minister’s response, our concern is that we are not sure exactly how the measure is going to work, because we do not know the full extent of the guidance or regulations, or whatever we are going to have. It would be very useful to have the guidance on what can be deleted in front of us. The draft regulations give extremely broad, permissive powers, but what the Minister has just said means that we are being asked to take a leap of faith. He said that duty cannot exist without faith, and asked us to have faith in head teachers. I promise to show faith in him as a Minister in exactly the same proportion that he showed it to me when I was a Minister in the previous Government.
Disraeli also said that a majority is the best repartee, and I cannot win a vote if I press my amendments to a Division. However, it is a leap of faith. We simply do not have the full picture of what the Government intend. Perhaps we should be permitted to trawl through the Minister’s BlackBerry to look at all the advice notes from his officials about the legal advice. We could see whether counsel has indeed said that all this is fine and that officials are unanimous in their view that what the Government are attempting is sound, but I am sure that we would not be allowed to do that. I think that that is probably enough product placement for one debate, as we have already mentioned BlackBerrys, iPods, iPads and the rest.
We have had a good debate. As the hon. Members for Stevenage and for Foyle have pointed out, the amendment is a probing amendment and it contains flaws that we would not actually want to put in the Bill. Given that there is not going to be a clause stand part debate, we may want to return to the issue on Report. We need more detail from the Government and reassurances about how the measures will work. Perhaps the Government will have tabled some amendments by Report stage. On that basis and with that proviso, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put forthwith (Standing Orders Nos. 68 and 89), That the clause stand part of the Bill.

Question agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Iain Wright: I beg to move amendment 19, in clause3,page6,line19,at beginning insert ‘Subject to subsection (6),’.

Charles Walker: With this it will be convenient to discuss the following:
Amendment 23, in clause3,page6,line27,at end insert—
Amendment 21, in clause3,page6,line28,at end insert—
Amendment 26, in clause3,page6,line44,leave out from beginning to end of line 9 on page 7.
Amendment 25, in clause3,page7,line9,at end insert—
Amendment 20, in clause3,page8,line11,at end insert—
 Mr Wright  rose—

Hon. Members: Hear, hear.

Iain Wright: It is a pleasure to serve under your chairmanship, Mr Walker. I am shocked, surprised and a little embarrassed by the welcome I have received—I have never had that before; certainly not from my own side.
I do not intend to detain the Committee too long on this group of amendments. The purpose of clause 3 is essentially to level the playing field between schools and colleges on discipline and the power of staff at further education institutions to search students. Consideration of clause 2 probed and scrutinised many of the same principles with respect to schools that we are now considering with regard to further education colleges. I acknowledge that, during the evidence-gathering session last week, witnesses, when questioned on this aspect of the Bill, welcomed the clause. Sue Whitham from the Sixth Form Colleges’ Forum said that
“we would want the same powers that the Bill gives to schools, because we are dealing in the main with 16 to 18-year-olds. On how those powers are used, we would expect guidance, but we believe that the same powers should be available to senior management in sixth-form colleges.”
Frank McLoughlin, an esteemed and respected principal of a further education college in London, agreed with that sentiment, stating:
“I think the same powers should be there as are there for schools for young people under 19.”
Having said that, Mr McLoughlin questioned whether he would use the power in his college. He told us:
“I have 4,200 young people in my college, but I cannot think of more than a handful of occasions in the past 10 years that I have been the principal when we would have wanted to use those powers.”
He concluded by stating,
“it is about how you run the place. I cannot see us using the powers.”––[Official Report, Education Public Bill Committee, 3 March 2011; c. 106, Q200-201.]
So we have this curious situation where leading practitioners in the FE sector state that they welcome the level playing field between schools and colleges and they welcome the possibility of having such powers on the statute book, but they could not envisage any circumstances in which they would use the power. Indeed, they would see the exercise of this power as a failure of leadership on their part. It appears that this power would be used very sparingly and in very rare circumstances.

Graham Stuart: I am grateful to the shadow Minister, whose rising to his feet led to such common acclamation across the Committee, for giving way. I enjoyed the generosity of that tribute to him as well as his discomfort in the receipt of it. He has just said that a witness last week told us that he could only recall a number of times in recent years when he would have used the power. The hon. Gentleman also said that the witness went on to say that he could not imagine any situation in which he would use it. My understanding was that the witness said that he could see situations in which he would use it, from his past experience, but they would not be very frequent. For clarity’s sake, the hon. Gentleman might want to put that right.

Iain Wright: I am grateful to the Chair of the Education Committee for exposing the inconsistency of my approach but, as he is well aware, the purpose of this amendment is to probe, to question, to scrutinise, to determine and to identify—as much as we can in Committee—the circumstances in which the Minister thinks that this power could and would be used. The hon. Gentleman, who has not been in this place very long but is already a formidable parliamentarian, knows that this House periodically produces legislation that is to be used in rare, exceptional or emergency cases. The purpose of my amendment is to probe and to determine the circumstances in which this power would be used.
In the debate on clause 2, we asked under what circumstances such a power would be used, and that is the question that I would like the Minister to answer. Where is the evidence that such a power is needed? Do not the existing provisions under the 1992 Act, amended by subsequent legislation, do what is really needed—and what we all want—which is to provide an orderly and safe learning environment for further education colleges? Can the Minister see any specific distinction between schools and further education colleges when it comes to the use of the power in clauses 2 and 3?
The Chair of the Education Committee intervened earlier, and I hope that he will intervene again or perhaps make a little speech of his own, because I was very interested in his Committee’s report on behaviour and discipline. The report suggested that there was little evidence that such additional powers are needed, but I want to probe the hon. Gentleman on whether he focused exclusively on schools, not further education colleges. The report stated:
“Data on behaviour currently collected by the Department does not fully represent the nature of behaviour in schools—good or bad—and the impact of that behaviour upon staff, pupils, parents and carers. We have been unable, therefore, to come to any evidence-based or objective judgment on either the state of behaviour in schools today or whether there has been an improvement over time, as some people believe.”
As I said, I would be interested in the views of the Chair of the Education Committee and whether, in producing that excellent report, the Committee considered further education colleges in any way.

Graham Stuart: The shadow Minister is being as fluent and as generous as he normally is. I would never seek to mock him, although I would sometimes tease him. In answer to his question, I would nudge him to look at the title of the report, which is “Behaviour and Discipline in Schools”. I would have hoped that the Select Committee would have changed the title if it had reflected a wider remit.

Iain Wright: I shall take what the hon. Gentleman said in the spirit in which it was intended. As for my being as fluent as usual, I did not think that I was as bad as that at the moment—I thought that I was slightly above average.
As for the definition of schools, did the hon. Gentleman’s Committee examine the 11 to 18 education institutions? I know that he is interested in the post-16 provision of education and the wider point about young people. I know that the Select Committee is investigating young people at the moment.

Graham Stuart: I shall be more constructive on this occasion. We only looked at schools, not institutions of further education on the specific subject of discipline, so other than the evidence heard by this Committee, neither I nor the hon. Member for North West Durham, who is also a member of the Select Committee, heard evidence specifically from the FE sector.

Iain Wright: I thank the Chair of the Select Committee for his clarification.
I come back to the evidence that the Government have seen and whether clause 3 is needed, which is the purpose behind amendments 19 and 20. They would add subsection (6) to proposed new section 85AD under clause 3 and require the Secretary of State, before he exercised the power under clause 3 to
“lay before Parliament a statement agreed with Her Majesty’s Chief Inspector…on the evidence that further education staff need the additional powers available in this section.”
When the Minister responds, I would be grateful if he would outline the circumstances in which he envisages that the powers would be used and say where the powers are lacking under current legislation.
The Government state that one of the virtues of the clause is to level the playing field between schools and colleges. I welcome that, given that more and more children are now being taught in FE colleges. It is also worth pointing out that there are differences. Post-16 education is not compulsory, at least not at the moment. In many respects, young people are not there through compulsion, but because they understand the value of a good education that will allow them to achieve their ambitions. In that context, it is to be hoped that there would be less disruptive behaviour through, say, resentment at having to be at college.
The same is true of the Committee. We have had remarkably little bother so far, largely because of your excellent chairing skills, Mr Walker, but also because we all want to be here. The big difference is that, in the FE sector, adults are being taught in a way that they are not taught in schools. It is not clear from the way that the Bill is currently drafted whether the provisions on discipline and search will apply to people who are more than 18 years old.
Amendment 23 probes the Government’s intentions as to whether there is an upper limit to the age of a pupil that would be subject to searches under the powers in the Bill. While we welcome the equalisation of policy between schools and FE institutions in this regard, the fact that the latter cater for adults as well as young people means that there is a need for absolute clarity in this provision. The Bill extends powers to search in order to maintain discipline, and we assume that the Government intended these powers to apply only to under-18s. Can the Minister confirm that?
Let me give a specific example. New subsection (2A)(a) states that “alcohol or its container” could be taken. Does the Minister envisage a scenario in which an 18-year-old has bought alcohol legally, put it in his bag and taken it to college with the purposes of drinking it off the premises later in the day—at a party or whatever—but then has had his bag searched and the alcohol taken from him, under the terms of this clause? Is that the Minister’s intention? The amendment seeks to clarify the Government’s intentions. It would be useful if the Minister could put on the record whether the legislation includes adults aged 18 or over, as well as children, who are defined in law as those aged 17 and under.
Amendment 21 seeks to ensure that staff conducting the search are trained to maintain the student’s dignity and right to privacy, and in methods that are appropriate for students with special educational needs and disabilities. Those matters were touched on at length during the debate on clause 2, and in the group of amendments that we have just discussed. The right to privacy is an important consideration.
I do not wish to return to matters discussed earlier—I am sure you would rule me out of order if I did, Mr Walker—but I want to probe the Minister on two specific, hypothetical questions. What would happen if a student aged over 16 and in a relationship—even a marriage or civil partnership—had intimate pictures of their partner on their electronic device? Are they allowed to say to the tutor, “On the grounds of privacy, I don’t want you to search that element of my electronic device.”?
Similarly, a 17-year-old at college may be a parent. They may have pictures on their electronic device relating to their children in the bath—innocent, innocuous family fun and purely for the purposes of the family. If the electronic device is searched, can he or she say to the tutor involved, “I don’t want those pictures looked at. They are extremely private family moments, and they have nothing to do with this issue.”? It would be useful if the Minister could confirm that.
At the moment, new subsection (6C) in clause 3(4) states:
“The person who seized the item may examine any data or files on the device, if the person thinks there is a good reason to do so.”
I would question whether that was appropriate for a 17-year-old. As we discussed earlier, does the Minister believe that the principal of the college should be present in all cases? Does the student have a right of veto over which files on a mobile device are looked at?
Amendment 25 seeks to define key terms used in the Bill. The clause gives staff in further education powers in relation to these terms, but does not currently define them. It would sensible for the Secretary of State to issue guidance on the definition of the terms contained within the clause. Let me give the Minister two examples. The first term that needs defining is “serious harm.” Section 224(3) of the Criminal Justice Act 2003 defines “serious harm” as
“death or serious personal injury, whether physical or psychological”.
Is that the legal definition that the Minister is working to? If the member of staff is to make the decision that the conditions are satisfied to allow him or her to dispense with the requirement that the search must be carried out by a person of the same sex as the pupil, or in the presence of a member of staff of the same sex, it is vital that “serious harm” is properly defined in the Bill or at least in guidance.
Similarly, code A under the Police and Criminal Evidence Act 1984 sets out that:
“Reasonable grounds for suspicion depend on the circumstances in each case. There must be an objective basis for that suspicion based on facts, information, and/or intelligence which are relevant to the likelihood of finding an article of a certain kind”—
I do not think anyone can disagree with that. However, the code continues:
“Reasonable suspicion may also exist without specific information or intelligence and on the basis of the behaviour of a person.”
On that basis, and according to that definition on the statute book, will the Minister tell us what reasonable grounds for suspicion will be under the clause?
As the Minister is aware, clause 3 dispenses with the requirement that any search must be carried out by a person of the same sex as the student, in the presence of a member of staff of the same sex as the student, if the staff member believes there is a risk of serious harm. Many stakeholders and members of the Committee have expressed concern about searching schoolchildren. I suggest that there is equal if not more concern about the searching young adults. For example, how appropriate is it for a male member of staff to search a 17-year-old woman? To safeguard students, and to protect staff, amendment 26 would therefore reinstate the requirement for a witness to be present.
My hon. Friend the Member for Cardiff West said this morning that the provisions regarding discipline and searching pupils in clause 2 are under-baked. The same argument can be used for clause 3. We tabled the amendments to probe the Government’s thinking and to allow the Minister to put more meat on the bones of the Bill. I hope that he will also take on board the need to safeguard the interests of student and tutor.

John Hayes: We have debated some of the broad points to which the amendments refer. I do not intend to be repetitive—you would not allow me to be so, Mr Walker—and I do not want to delay the Committee unduly, as the hon. Member for Hartlepool said. However, the amendments draw our attention to specific matters that require proper scrutiny. I will deal with a couple of things promptly, so that we can then move on to the elements that the hon. Gentleman described as requiring more careful consideration.
The existing law does not allow a member of staff to search or seize alcohol if the student is aged 18 or over. We are not changing that in the Bill. I wanted to make that perfectly clear because the hon. Gentleman cited the example of alcohol. Similarly, on the issue of familial relationships with a married couple holding images of one another, I think there would be no likelihood of harm resulting from that. However, one would not want to make a blanket judgment, and there would have to be a test of reasonableness. People can be married but not necessarily on good terms, and marriage would not be a prerequisite for any assumption—[Interruption.] For the record, my wife is a charming woman with whom I am deeply in love.
The hon. Member for Hartlepool raised the use of the powers at the outset of his remarks and quoted Frank McLoughlin from the evidence sessions. The hon. Gentleman was right that Frank McLoughlin expected the powers to be used rarely and said that he could not imagine circumstances in which he would do so. However, he prefixed that by agreeing with Sue Whitham who had said:
“This is from the sixth-form college perspective and not the GFE perspective. For sixth-form colleges, we would want the same powers that the Bill gives to schools”.
Frank McLoughlin acknowledged that and said:
“I agree with that. I think the same powers should be there as are there for schools”.––[Official Report, Education Public Bill Committee, 3 March 2011; c. 106, Q200.]
To be absolutely clear, Mr McLoughlin, like Sue Whitham, made it plain that he thought we were right. He went on to say that in his college, which is extremely well run—as the hon. Member for Hartlepool said, Frank McLoughlin is a distinguished principal—he could not envisage circumstances in which the powers would be used.

Iain Wright: I do not think that the Minister is aware that I have quoted that passage from the oral evidence session—he might have been resting at that point. May I ask a similar question to the one that my hon. Friend the Member for Cardiff West asked about clause 2: has there been any lobbying from the FE sector—the post-16 provider—to argue that the powers are necessary?

John Hayes: I am in regular contact with the FE sector, as the hon. Gentleman would expect. I was in a college yesterday, and I speak to the representatives of all college organisations regularly—they might say with alarming regularity.
It is certainly true that the college sector believes that there should be some equivalence in the powers, largely because there is substantial evidence that colleges require appropriate authority to deal with discipline.
 Kevin Brennan  rose—

John Hayes: I shall give way to the hon. Gentleman in a second. However, it would be wrong to assume that discipline problems pertain only to schools, although I know that he does not assume that.

Kevin Brennan: I know the Minister wants to develop that point, but he talked about equivalence. As no school rules apply to FE colleges, am I right that an electronic device would have to be being used to commit an offence, or to cause personal injury, if staff were to be able to exercise the powers? In that sense, there is no equivalence.

John Hayes: To give the hon. Gentleman an absolutely factual answer, the member of staff would have to reasonably suspect that the article
“has been, or is likely to be, used…to commit an offence, or…to cause personal injury to, or damage to the property of, any person”.
There has to be the expectation or the discovery of that kind of action. In that sense, the hon. Gentleman is correct that colleges are different, given the nature of school rules.

Kevin Brennan: That is an interesting point. It would be worth while if the Minister would explain why there is no desire to create such equivalence in law, because we are left with a situation in which a 17 or 18-year-old pupil in a school finds that their mobile device is more liable to search under law than is the case for a 17 or 18-year-old in an FE college. Two identical young people in identical circumstances might therefore be in very different legal positions with regard to their mobile devices.

John Hayes: Yes. I looked at that closely in anticipation of the Committee, because the hon. Gentleman is correct that the balance between creating a degree of consistency throughout institutions and recognising their different character presents a challenge to the Government, as it did to the previous Government. I took the trouble to look back through almost everything said on that subject by the previous Government’s Secretaries of State. Several announcements were made under the previous Government and we have already referred to the additional search and screening powers that were given. Pervading those considerations over time is the very tension that the hon. Gentleman has drawn out about how one deals with colleges and schools, given that colleges are attended by many 16 to 18-year-olds as well as adults.
To pick up the point made by the hon. Members for Cardiff West and for Hartlepool, the colleges say that they want equivalence in the sense that they want the authority to use search powers when that is appropriate. However, they are mindful that their different circumstances might change the application of those powers in precisely the way we were beginning to tease out. That is why—the hon. Member for Hartlepool made this point perfectly reasonably—Frank McLoughlin says he thinks that they should have the same powers, although he could not imagine a circumstance in which he would use them. There would need to be sufficient grounds for concern about the changing nature of intimidation or bullying, for example, which do take place in colleges, to feel that there has to be an appropriate response in line with schools.

Mark Hendrick: As someone who taught in an FE college for four years before being elected to another place across the water, if I may call it that, the circumstances in which FE teachers find themselves are obviously very different because of the age group. Although some of the teaching unions and professionals who gave evidence to the Committee may want equivalence for reasons of consistency, the practical considerations of handling 16, 17 or 18-year-olds, or adults, when using the restraint or search powers, for example, would make things very difficult.

John Hayes: The hon. Gentleman sets out well the nub of the tension that I am describing. Schools have broader powers that allow staff to search for prohibited items under the school rules. There is a strong argument that there is scope within the behavioural contracts of colleges to set out rules and expectations of what students can and cannot bring into college. It is reasonable for us to expect colleges to use such contracts in individual situations.
The Bill is pretty clear about the salience of malevolent intent. Clearly, a mobile phone is not of itself a dangerous item. There has to be such intent, does there not? That is why these matters are sensitive, and it is why, as I said when we debated an earlier group of amendments, the extension of powers in this area has to be mitigated by a proper consideration of balance and reasonableness. Our view on that would be no different from that of other members of the Committee.

Kevin Brennan: Will the Minister give way?

John Hayes: I need to make progress, but I will give way to the hon. Gentleman because I am generous.

Kevin Brennan: The Minister is generous, and I know he will always give way in Committee, as is the tradition.
I do not want to generate a plethora of correspondence for members of the Committee, but I am interested in the Department’s legal view on the tension between the situations involving a mobile phone in which a 17 or 18-year-old might find themselves at school or FE college, and the potential danger of human rights cases being taken against such institutions. None of us wants to see colleges and schools involved in litigation as a result of something we do here, so would it be possible for the Minister to write to members of the Committee about that?

John Hayes: I have an idea, Mr Walker, and if I bounce it off you and the Committee, I hope that it will start to fly. I will try to combine a number of these points in a single letter, because I do not want to confuse the Committee or put my officials under undue pressure. We may be able to deal with a number of overlapping issues on which clarity would help our proper scrutiny. I am more than happy to do that.
 Mark Durkan  rose—

John Hayes: May I make a little progress? I will then be happy to give way to the hon. Gentleman, who is playing a dutiful role in ensuring that this Bill does what it is supposed to do.
The Minister of State, Department for Education, my hon. Friend the Member for Bognor Regis and Littlehampton, spoke during the debate on amendments 10 and 11 about the importance of giving schools powers to ensure that students’ behaviour was more acceptable I do not want to go on at length about the evidence on disruptive behaviour, but just to give a flavour of it, more than half of the 30 sixth-form colleges that responded to a snapshot survey reported an incident in the previous 12 months in which a student or group of students had used an item other than a weapon to cause damage to college property or the personal belongings of a student or staff member, to cause harm to another student or member of staff, or to commit an offence. Examples include the use of screwdrivers to damage goods and equipment.
I have read a newspaper article on a large south-east London college. The hon. Member for Cardiff West said that he had learned his skills in a working-class home in south Wales. I learned my skills in a working-class home in south-east London, which was more Ernie Bevin than Aneurin Bevan, one might argue. I thought of that when I read this piece.
The article states that the object does not have to be a knife. As long as it is sharp, it could be a pen or even a key. A student has been quoted as saying that most people carry such things for their own protection and that it is easy to get that kind of thing into college by sticking it in a waistband, a shoe or a sock. We know that this is a problem in colleges; we should not be starry-eyed about it, and I know that hon. Members are not. Colleges argue that they have to confront some of the problems that are sometimes experienced in schools.

Mark Hendrick: May I add to the less than exhaustive list that the Minister gave? I have come across syringes and needles discarded in a toilet, although I am sure that if some students had been searched, those things would have been found on them. Luckily, they were not shooting up in class, but I am sure that that sort of thing goes on.

John Hayes: I am delighted that the hon. Gentleman has made that information available to the Committee because this very serious matter requires a serious response. He knows that the previous Government acknowledged that problem and extended the powers to search for drugs as well as weapons. He makes a powerful point and I do not think that there is much disagreement in party terms about it.

Graham Stuart: The submission from the Association of Colleges welcomes the extension and it seeks the equivalence that we have talked about. It says that occasionally there are searches and that this measure will help college staff in their day-to-day work. However, it also says that specific guidance is needed so that colleges may support the legislation, so this is an instance of colleges themselves asking for guidance, even though I know that too much guidance may have been issued by the last Government. I also know that my hon. Friend the Minister is a great champion of the FE sector—there is no greater champion of the sector—and that he will therefore want to ensure that, unlike the previous Government, which made only one mention of colleges in its guidance, on page four, he puts colleges at the centre of proper thought and proper guidance.

John Hayes: As you know, Mr Walker, the Cinderella sector found its Prince Charming when I became Minister. My hon. Friend brings his point to the attention of the Committee more powerfully than I could have done. His Committee’s report on these matters said:
“We support proposals in the Schools White Paper to extend powers relating to search and to clarify powers of restraint, in the interests of supporting teachers’ authority in managing behaviour.”
Because I have discussed it with him, I know that he shares the view that colleges also need to have these types of powers to tackle the sorts of things that we have begun to exchange views about today.
Perhaps I may add at this point that it is easy to forget that colleges teach a number of students in the 14 to 16 age range. The relationships and collaborations between schools and colleges mean that colleges deal with very young people as well as with people who are considerably older. The survey by the Association of Colleges reports concern about such things as the theft of mobile phones and other criminal activity. Furthermore, college principals have said that they would like to have some of the powers of school principals.
Like staff in schools, college principals and authorised members of college staff already have a statutory power—the one that I mentioned a few moments ago—to search students without their consent, in certain defined circumstances, for knives, weapons, alcohol, controlled drugs and stolen items. Extending powers in colleges in a similar way to as in schools will ensure that authorised college staff have the powers to deal quickly and effectively with problem or extreme behaviour. It will ensure that the rights of students and staff to study and work in safety will be protected, regardless of whether they study and work in a school or college.
Let me just emphasise that point. In dealing with such behaviour, it is easy to focus on the individual concerned in the incident and to understate the broader effect on the college or school community.

Mark Durkan: It is not so much about extreme behaviour as about possible extremist behaviour, given that the clause deals with further education institutions. In a previous sitting, I gave an example of a further education institution in Northern Ireland that was trying to maintain campus neutrality and resolve contentions involving football displays and so on. Is the Minister content that the clause would cover a situation in which, at a further education institution with a cultural and ethno-religious mix, and maybe a difficult and contentious environment outside, material is displayed using an electronic device, as we said earlier, in a deliberately provocative manner? Would the powers permit staff to act against such material on an electronic device in that situation, taking into account, as he said, the wider good and the wider impact on the college population and environment?

John Hayes: The hon. Gentleman makes a useful addition to our considerations. He is right to make it clear that what is described in popular parlance as cyber-bullying is as likely to happen in a college as in a school. We should not assume that it applies only to teenagers and so on; it could happen to others. If such material were of the kind mentioned by the hon. Member for Cardiff West—serious pornographic material, for example—it would be an offence, as it would be outside an educational institution.
Just to clarify the point—it involves another clause, but I hope that you will not mind, Mr Walker—in those circumstances, I think that a teacher would, of course, report the matter to the police. If they suspected a serious criminal incidents—it might be an a priori assumption, but if they none the less recognised the potential for seriousness—I think that they would want to take the matter to the police. Nothing that we are saying in the Bill prohibits that. I think it appropriate that we consider the possibility, as the hon. Gentleman suggests, that devices might be used to engage in unhealthy or unsuitable activities, just as in schools.

Mark Durkan: Just to clarify, is the Minister saying that he believes that it may be appropriate and relevant under the clause for a member of staff at a further education institution to delete from an electronic device emblematic displays used by, for example, extremist British nationalists or Muslim fundamentalists, or the cartoon published in Denmark that were the subject of an awful lot of controversy, which could be displayed in particular circumstances as a visual aid to racial provocation? Would that be covered? Where would the member of staff be when making such an erasure, given that political controversy would likely follow?

John Hayes: The hon. Gentleman is an experienced and shrewd Member of the House. He will know that legislation lays down a series of principles that are then clarified in guidance. Judgments about the detail, as we argued earlier, will be made by principals and head teachers. None the less, it is as clear as crystal that if there is
“an article that the member of staff reasonably suspects has been, or is likely to be, used…to commit an offence, or…to cause personal injury to, or damage to the property of...any person”,
action would clearly be taken. The provisions include incitement to racial hatred, harassment and a range of offences. When we think of offences, we should not simply think of violent offences. A whole range of offences that relate to bullying in a school or college would be included. The hon. Gentleman might argue that they are at the extreme end, but they are related none the less. Whether something was criminal would depend on the character of the material. Certainly, we are attempting to extend the power of those involved to take swift action to deal with the possible effects of such malevolent intention and action.
The other point made by the hon. Member for Hartlepool was about the age of students. I want to explore that a little further for the benefit of the Committee. We are all aware that the age range of students in colleges is far wider than in schools, and we should consider carefully whether that should make a difference to how we frame the powers in the Bill. We have had that debate. As we were saying about the tension between schools and colleges, there is a perfectly reasonable debate to be had about whether a line could be drawn at some point to say that the powers should apply only to people beyond, or below, a certain age.
We concluded, after careful consideration, that we should not create that kind of age barrier for two reasons. First, we believe that if a student is carrying an item that has been used or is likely to be used to commit an offence, it is entirely right that staff should have the same basic power to deal with the situation irrespective of the student’s age. If we agree, for example, that a 17-year-old should be prevented from damaging property with a screwdriver, why not a 20-year-old? Colleges tell us that they face the same problems as schools in the way that I described earlier, so we believe that they should have the same powers to deal with them. In addition, we believe that all students under the age of 18 should be treated equally, regardless of where they study. Their parents should have the assurance that their children receive the same safeguarding in colleges as they enjoy in schools.
Secondly, this is a broad power that we will expect college staff to interpret and apply within their institutions. We do not intend to spell out in detail how it should apply in every situation. Colleges are responsible institutions; they know what is appropriate to their individual environments and are well equipped to judge the seriousness of any circumstance. We are clear that we are providing a broad power for staff to act swiftly when absolutely necessary. Searches will be not be undertaken lightly. Colleges are staffed by highly-qualified and committed professional staff. We trust them to interpret the provisions sensibly, in a way that is appropriate to the age of the students concerned, within their individual institutions and in accordance with their colleges’ regulations and behavioural contracts. We thought about whether a barrier on age or a limit should be set and, for those two reasons, concluded that it should not.
Amendment 21 is linked to amendment 12, which the Committee discussed earlier in relation to the conduct of searches. I understand the concerns behind the proposed amendment. Students’ dignity and entitlement to privacy should be sufficiently protected. Searches must only be carried out with good reason, and those reasons are set out in the proposed legislation.
I also understand the additional issues that arise when carrying out searches on certain pupils with special educational needs or disabilities. I am particularly sensitive to that. For all my political life, including when I was county councillor long before I first came to the House, I have been very interested in special educational needs and disability issues. I asked such questions when we discussed the legislation. Again, the emphasis here must be on the appropriateness and the sensitivity used by senior managers, teachers and lecturers in dealing with those issues in line not only with legislation, but with guidance. When the guidance is issued, we will address some of those matters.
I agree with my hon. Friend the Minister with responsibility for schools that decisions about the training that is offered to members of staff on searching pupils and students without consent are best made by individual schools and colleges. I need to form something of a Hegelian synthesis with the hon. Gentleman, because I felt just a frisson of difference between us earlier, which caused me some pain.
Good heads and principals will want to ensure that their staff are trained. That has been clear in my discussions with principals, and I know that equivalent discussions have been taking place between my hon. Friend the Minister and head teachers. It was clear that the responsibilities that the Bill confers were not taken lightly by the witnesses in the evidence sessions. It would probably not be appropriate to get into a debate here about the funding of that, however. What the hon. Gentleman said has been put on the record, and if I were to respond now I would probably once again be chastised by the Chair. On that note, I had better give way to the hon. Member for Foyle.

Mark Durkan: In summing up on the clause, the Minister has explained the rationale—as did the hon. Member for Hartlepool, who tabled the amendments—behind achieving equivalence where that was sought. Does the Minister believe that the clause takes enough account of the real differences between a further education setting and a school? Those differences include the age range, the fact that many more people will be part time, possibly sponsored by an employer, and the fact that far less time will be spent in class.
Far more of the time that a student spends at an FE college will be in a less supervised setting and in a more open context than in class. Much of the discussion on the previous clause presumed that we were talking about a teacher in a class setting who was in charge of a class, but that is not going to be the case in FE. The powers of search, for instance, will involve possibly having to stop someone in a situation that is very different from one that might occur in a school classroom.

John Hayes: That is a good point, because the hon. Gentleman is right that further education is diverse by nature, and colleges perhaps all the more so. In essence, this is a permissive power, which will be used appropriately. I have made the case about what I described as sensitivity and appropriateness, because principals will have to make judgments about the application of the power that are pertinent to their circumstances.
The hon. Gentleman’s point about the difference between schools and colleges could be made about the difference between different types of college, or different types of school. Some colleges are small and their offer is much more limited. Other colleges are extremely large, with large numbers of part-time students, and they offer a range of provision. The power is permissive, and it has to be applied with sensitivity according to local circumstances.

Iain Wright: The Minister has just mentioned that the power is permissive. Does he anticipate that principals of FE providers might think, “This is a wide-ranging power that might be used a couple of times every couple of years. The training on it, which is vital to safeguard my staff, is expensive, so I am not going to use the power,” and therefore it will lie idle on the statute book? How often does he anticipate the power being used in that context?

John Hayes: I have been a school governor all my adult life, and I remain so. As the hon. Gentleman knows, a school or college often trains staff for a responsibility that might be exercised only occasionally. School governors, managers and teachers—the same would apply to the equivalent people in colleges—might be trained to perform a particular function or task, which might be a legislative requirement or a matter of choice by the school, but which is not employed daily, weekly or monthly. We are talking about authorised staff, and not every member of staff will necessarily be so authorised. It would be a targeted competence, supported by appropriate training, which is not out of line—certainly in my experience—with what schools and colleges often do now. It is not exceptional. In the end, such judgments about training will be made locally.

Mark Hendrick: If I may relate back to my own training, I remember going on day release to do a university of Manchester certificate in education, which covered several modules, none of which was related to the subject area that we are discussing. Nevertheless, they were an investment that the college felt it was important to make at the time. Training has some value, but I want to bring it back to the issue of age. A young female teacher dealing with a young female pupil in a primary school is a different scenario from a 19 or 20-year-old part-time student who has come into college from the pub on a Friday afternoon and wants to behave in a way that they see fit, but the teacher does not. Restraining or searching somebody in that situation is a different thing, and it can never be dealt with through training. It needs the discretion and judgment that the Minister has mentioned.

John Hayes: I accept that once again helpful intervention from the hon. Gentleman. We have reached synthesis, because the intervention was a helpful illustration of the fact that, because circumstances vary, heads and principals must be allowed to use discretion in how they apply the power. I will go further and say that college principals should not be hampered with over-prescription from central Government about how they should train their own staff to use the provisions. They should have the freedom to take decisions in the light of their particular needs and circumstances. They need the flexibility to ensure that their staff get the training that benefits them the most. Remember that colleges generally employ professional security staff, who will be specifically trained in the conduct of searches. It is usual for them to carry out a search if one is necessary.
On that basis, it may be useful to tell the Committee that a recent survey, carried out by the Association of Colleges, showed that, of the 16 colleges that responded, four had carried out searches of students over the past year, and one had carried out 89 searches during that time. By the way, all the colleges reported instances of cyber-bullying in that period. Security in colleges—the point that the hon. Gentleman referred to—is often a different matter from security in schools. The discretion that we are allowing, in what I described as a permissive power, will facilitate appropriate responses to meet those particular circumstances.
As my hon. Friend the Minister said this morning in relation to schools, when the powers to search for weapons were introduced in the Violent Crime Reduction Act 2006, which we heard about earlier, and when they were extended to include alcohol, illegal drugs and stolen items in the Apprenticeship, Skills, Children and Learning Act 2009—we both served on that Bill Committee, and it seems like yesterday—a training requirement was unnecessary and was regarded as such by the previous Government when that legislation was debated prior to enactment. There is no difference between our perspective on this and theirs.
Amendment 23 would ensure that all students in further education institutions were covered by the new powers to search students without consent, regardless of their age. I dealt with age earlier. As has been mentioned, we agree that the extended powers should apply to all students. That reflects the existing statutory power that enables college principals and authorised members of college staff to search students without their consent for knives or weapons, controlled drugs and stolen items. As I also said earlier, other than for alcohol, which is not illegal if in the possession of someone aged 18 and over, there is no age limit placed on the existing search power.
From memory—this is not a rhetorical device—I believe that that matter was discussed around age when earlier powers were considered and introduced. This, in those terms, may be seen as something of a reprise or a cover version—to rise to the challenge offered by the hon. Member for Hartlepool when he was speaking about his immense, eclectic, renaissance record collection. [Interruption.] I made that assumption because I know he is a man of immense taste and breadth. As drafted, the extended powers cover both over and under-18-year-olds. Any specific reference to over and under-18-year-old students is redundant, and therefore the amendment is unnecessary.
On amendment 25, I understand the hon. Gentleman’s concerns that searches without consent in colleges be conducted properly and with regard for the safeguarding of students. However, as my hon. Friend the Minister responsible for schools mentioned, it is not necessary or desirable to define those terms in guidance. College staff, like school teachers, are intelligent, sensible people who will know exactly what those items mean in an everyday sense. That is important because of what I said earlier about things being used as improvised weapons.
The survey I described mentioned screwdrivers, keys and other things. When something has been sharpened and is clearly being concealed for a purpose, and could be used as a weapon, we have to make the reasonable assumption that teachers and college staff will use their judgment with the mitigating test of reasonableness that I described earlier.

Iain Wright: Will the Minister confirm that the definitions for “serious harm” and “reasonable grounds for suspicion” will be used as per the 2003 and 1984 legislation respectively?

Charles Walker: Order. Mr Hayes, for the sake of clarity, is this going to be one of your short speeches, or one of your long speeches?

John Hayes: As a result of your question, Mr Walker, my speech has become suddenly shorter. I am moving to an exciting conclusion, but I want to deal briefly with the hon. Gentleman’s question. The answer is no, which is about as short as it gets.
As my hon. Friend the Minister rightly pointed out, most of the terms listed have been included since 2007, when the power for schools and colleges to search pupils without consent for knives and weapons was introduced through the 2006 Act. That Act enabled colleges to search students on reasonable suspicion that they were carrying a weapon, and it gave them the power to use force to conduct a search.
I agree with my hon. Friend the Minister that terms such as “search”, “reasonable suspicion” and “force” were well understood then, just as they are well understood now. Colleges are responsible and professional institutions, and we believe that they will exercise these powers with the diligence, responsibility and wisdom that I have found is the norm when I have visited colleges up and down the country since becoming a Minister.
I move rapidly to my conclusion. I do not want to miss this point, because it is important illustratively in dealing with some of the issues raised—perfectly properly—by other hon. Members. A practical example of where the provision would be helpful is when a member of staff leads a field trip. Suppose they learn that one of the students, known to have a connection with the local gang, is carrying a small penknife that he believes is necessary for protection as he will be passing through another gang’s area. In that situation, it would not be practical for college staff to restrain the young man until another member of staff, or the police, arrived. It makes more sense that the law allows a member of staff to search that person or a bag he is carrying. My hon. Friend the Minister referred to that in relation to schools.
Two misassumptions—I put it no more strongly than that—have risked permeating our discussion. The first is that this is about only the search of a person, when it might be about something the person is carrying. The second is that there is an inherent difference between what is held on an electronic device, and what might be held on a sheet of paper in a book or in a desk. Those are not fundamental differences in terms of their likely effect. They are differences of method, rather than a difference of intent or effect.
It is not possible for us to predict in every circumstance when it might be necessary for a member of college staff to search a student without a witness, but it is right that they can take immediate action to ensure the safety of all concerned when such circumstances arise. I do not want to go exhaustively through this, because we debated it at length in relation to schools. I would add that the extended powers have been welcomed by the Association of Colleges and the Sixth Form Colleges’ Forum. I believe that there is ample evidence that the powers are necessary and proportionate and, therefore, the amendments are unnecessary. On that basis—I will not on this occasion say, “on the basis of my generosity”, because it is for others to judge that—I invite the hon. Gentleman to withdraw the amendments.

Iain Wright: I will be brief. I thank the Minister—the hon. Gentleman, the Prince Charming—for his remarks. I also thank him for the swift clarity he provided on my point about alcohol and age in the provisions. He spoke for some time and, from interventions rather than my own speech, we teased out some real leaps in the dark. The Minister does not seem to be aware of the circumstances in which powers will be used. Thanks to successful interventions by my hon. Friend the Member for Cardiff West, we teased out the idea that there is a lot of tension in the equivalence between schools and colleges. There could be a position whereby a pupil attending a school facing exactly the same circumstance will be dealt with in a different way legally from someone in a further education college.
It was certainly made clear that guidance is required to provide any light in this darkness. That is not burdensome bureaucracy or red tape; that is something the FE sector is crying out for—to be given guidance to help staff carry out these tasks.
In the interests of brevity and making progress on the Bill, I do not want to test the opinion of the Committee, but I give notice to the Minister that I hope we get comprehensive guidance, and a letter explaining the circumstances in which the power can be used, before Report. I also give notice that I would like to come back on Report to this important matter. There is a leap in the dark. I know the suggestion has been welcomed by the FE sector, but it is crying out for guidance. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put forthwith (Standing Orders Nos. 68 and 89), That the clause stand part of the Bill.

Question agreed to.

Clause 3 ordered to stand part of the Bill.

Clause 4

Kevin Brennan: I beg to move amendment 33, in clause4,page8,line13,at beginning insert ‘Subject to subsection (5),’.

Charles Walker: With this it will be convenient to discuss amendment 34, in clause4,page10,line7,at end insert—

Kevin Brennan: We now move on to clause 4 about the exclusion of pupils from schools in England. The proposals shows the difference between government and opposition. There is a lot of detail and I do not intend to be as lengthy as the Minister in the previous discussion. That was a bit more “Bohemian Rhapsody” than some of the shorter songs we might have had from him. Nevertheless, it was an important debate and a tour de force of its kind by the Minister.
The clause shows the difference between opposition and government, because when in opposition, Ministers were saying very different things from what they propose here. They said they wanted the head teacher to be the captain of the ship. Whether that was Captain Bligh or another, they wanted the head teacher always to be the captain whose decisions on exclusions could never be gainsaid.
“We campaign in poetry, we govern in prose.”
In this instance, we could perhaps say that the Ministers campaigned in rhetoric and are now trying to govern in reality, because the proposal they have introduced is different from that which I have just described. They are talking about a system in which there is an exclusion panel of sorts, but with different powers from the previous one.
We certainly believe that no child should have their learning disturbed by poor discipline in the classroom, and that exclusion should always be a last resort. When we were in government, teachers were given strong new powers to ensure order and discipline, as has been acknowledged in the Committee, and we had plans to strengthen home-school agreements to make clear the responsibility that families and pupils also have in ensuring good behaviour. We believe that every parent should agree to the school’s behaviour rules, by signing a contract each year, and should face real consequences if they fail to live up to the rules, including the option of a court-imposed parenting order. Parents are a crucial part of the equation, and there is a sense that they have been forgotten in parts of the Bill.
We were also working to improve alternative provision for excluded pupils, and later in the Bill we will come to some of the Government’s proposals on that. We also believed that more needed to be done to tackle bullying in schools, which, as the Minister said, is a significant cause of bad behaviour, in particular by investing in anti-bullying interventions, including those to tackle homophobic bullying. I welcome the personal commitment of the Minister with responsibility for schools on that. I know that he recently visited Schools Out, and having addressed that audience myself—I was the first Minister ever to undertake that visit—I pay tribute to him for taking on that task. It is a positive thing for him to have done. The Government have talked a lot about that issue, but we are yet to see real action.
The clause has the potential to reduce parents’ rights by abolishing both appeals panels and pupils’ ability to be reinstated by an independent body, and replacing them with a review panel that cannot require reinstatement. That is the gist of the clause that we seek to amend here. There is concern from parents and others about safeguards for vulnerable groups, such as children with special educational needs and groups that have disproportionate levels of exclusion. It is not entirely clear how removing a pupil’s chance of being reinstated on appeal will play out legally. That was a concern that we had when in government, and the legal advice that we received was that the problem with doing what the Opposition at the time wanted the Labour Government to do was that it was likely that many of the cases could end up in court.
As we will discuss later, on amendment 35, not many pupils are reinstated in the way sought by the clause. There has occasionally been some exaggeration of the problem, but the size of the headline is not always related to the size of the problem. In combination with clause 6, which repeals the duty on schools to enter into behaviour and attendance partnerships, and which the Committee will debate at a later date, the clause might be seen by some people as a signal to parents and pupils that once a child is excluded they could be written off. Is it the Government’s intention to have greater numbers of young people in alternative provision and, in effect, prevent them from ever returning to a mainstream school setting? I am sure the Minister will want to share with the Committee his thoughts on that accusation, which some have made.
Will the Minister reassure us that the clause, combined with clause 49, which changes the name of short-stay schools back to pupil referral units—an issue mentioned by the hon. Member for Bedford on Tuesday—and clause 51, which enables alternative provision such as pupil referral units to become academies, does not indicate that the Government intend that excluded children will not return to mainstream education? Can he enlighten us on his intentions in this clause?
We have not heard a great deal about what the Government intend to do to offer the kind of support and one-to-one assistance to help prevent bad behaviour before it starts and to bring children back on track once they have been excluded from school. It would be very useful to hear from the Minister on that point. Obviously we will debate the details of these points as we progress through the Bill, but in the meantime it would be helpful if the Minister could set out now in some detail his position on exclusions and on tackling bad behaviour before exclusions become necessary, while ensuring the protection of vulnerable groups.
The clause creates these new exclusion panels, which do not have the power to insist on reinstatement. Could the Minister explain why a head teacher under any circumstances would refuse to carry out the recommendation of a panel after it had recommended reinstatement under his new provisions? Would a panel ever recommend the reinstatement of a pupil because certain issues had not been taken into account or because certain procedures had not been followed? Would it ever be unreasonable to recommend the reinstatement? If the panel would always be reasonable in acting in that way, because it has to consider whether this could be challengeable by judicial review, does the Minister intend to allow head teachers to be unreasonable in refusing to allow a pupil back into the school? If he could square that logical circle for us we would be very grateful.

Nick Gibb: It is a delight to be back in the responding seat again, after the interesting deliberations on clause 3. Before I come to some of the points raised by the hon. Member for Cardiff West I want to talk about the amendments because it is difficult to understand what they are driving at. Amendment 34 talks about new powers for school staff in clause 4 but there are no new powers in the clause. It is about the independent review panel. So I should like to take the opportunity to explain why we are removing independent appeal panels and replacing them with independent review panels.
In 2008-09 just under half of all permanent exclusions were for violent or abusive behaviour. The latest figures show that independent appeals panels overruled head teachers on exclusions in a quarter of the cases they heard. In the cases where the head teacher was overruled, one third of the pupils were then returned to the school from which they were excluded. We believe that is unacceptable, notwithstanding the fact that the absolute figure we are talking about is relatively small compared with the overall number of exclusions and the overall number of schools.
The possible reinstatement of an excluded pupil, however rarely that happens, can seriously undermine a head teacher’s authority. That may create a deterrent to other head teachers that could prevent them from excluding a child when it is right and necessary to do so.

Kevin Brennan: I understand that the Minister wants to go on to make the point that he believes in principle that that should not be allowed to happen. Perhaps before the conclusion of his remarks, could he share with us the quantum that he mentioned in relation to the absolute number of cases where the pupil who had been excluded was ultimately reinstated?

Nick Gibb: I am happy to do so. In 2008-09—the year for which I have figures—640 appeals were lodged. That represents about one tenth of permanent exclusions. Some 590 of those appeals were heard, of which around a quarter—150 appeals—were determined in favour of the parent. Ultimately, 60 of those pupils were reinstated. Those 60 pupils can cause damage in one year to 60 different schools around the country. One pupil returning can hugely undermine authority in a school in that year. I refer the hon. Gentleman—perhaps this will pre-empt the hon. Member for Sheffield, Heeley from intervening—to two of the head teachers who gave evidence.
 Meg Munn (Sheffield, Heeley) (Lab/Co-op) indicated dissent.

Nick Gibb: The hon. Lady shakes her head—I was hoping, but it is not to be. Sir Michael Wilshaw, for example, who is the principal of an outstanding academy in Hackney—I think that all members of the Committee who know the school would pay tribute to him—said:
“Certainly one provision that I welcome, apart from the same-day detention that we already do, is the fact that once the governors have reached the decision to exclude a child—no-one excludes lightly—it should be final. There is nothing worse for a head teacher than for his or her authority to be undermined by an appeal panel that sends back a child.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 56, Q109.]
Sally Coates, the principal of Burlington Danes academy, said:
“I am very pleased that the appeals panels have gone, having had a permanent exclusion overturned. A teacher was attacked with a knife and the child was able to come back to the school. The governors made the right decision, so I am very pleased that the panels have gone.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 57, Q111.]
Although the numbers are small, the effect that those returns have on the authority of a head teacher is colossal, as the evidence of those two head teachers shows.

Meg Munn: I was very struck when the Minister said that this is unacceptable—meaning that in every case it is unacceptable. I am sure that we will come to the general philosophical point, but I am puzzled that he knows somehow that it is unacceptable in every case. He seems to assume that every reinstatement is necessarily bad, whereas we will explore the reasons why that might not be so, including perhaps whether the child’s situation was not fully understood. To assume that a panel will always get it right or that somebody else—a review panel—would always get it wrong, seems extraordinary.

Nick Gibb: This is about trusting the professional judgment of head teachers. We Government Members do that more than Opposition Members. These are professional people who are running great institutions in our country. They do not permanently exclude their pupils from school lightly. When other people second-guess their decisions, or the fear is that their decisions will be second-guessed, that has a detrimental effect on the power and authority of that head teacher in keeping authority and discipline in the school.

Mark Hendrick: I apologise for not being here at the start of the Minister’s current contribution—I had to nip out briefly. Does he genuinely believe that head teachers will continue to use the same discretion as they do now, knowing that pupils could be reinstated if a panel felt that they were wrongly excluded? Does he make any distinction between a head teacher excluding a pupil because they are a nuisance, and it is convenient to do so knowing that they cannot be reinstated, and a pupil who—as in the case cited—might be a genuine danger to other pupils and has used a knife in the past? To exclude the latter would be perfectly reasonable.

Nick Gibb: My view of head teachers is that they do not act in that way.

Mark Hendrick: In the current environment?

Nick Gibb: In any environment. They are professional people and know that the decisions they take about whether to exclude a pupil permanently, or for a fixed term, have an important effect on that child’s future. I have not yet met a head teacher who says, “If a child comes into school dressed improperly, I permanently exclude them. If their exam results look like they might damage my league table position, I just exclude a whole class permanently.” I have never come across a teacher who says that, nor have I come across clear evidence that this happens. I do not believe it is happening. It is important to trust head teachers.
There are safeguards with the independent review panel. The hon. Member for Cardiff West opened his remarks by saying how different this policy is from the one we had in opposition. Well, we achieved what we wanted in opposition, which was to avoid automatic reinstatement and the ability of an independent body to overturn the decision of a head teacher. That was the objective. We have now combined that with taking into account head teachers’ concerns over the threat of a judicial review of their decisions, so I think we have the best of both worlds in the decision we eventually reached that is incorporated into clause 4.

Stella Creasy: I take extreme exception to the idea that Opposition Members do not see head teachers as important people. I speak as the daughter of a head teacher, and therefore have extremely high regard for them. I am quite confused by the situation that the Minister is setting out, because if he believes that head teachers would never exclude in a way that was inappropriate or open to challenge and scrutiny—which an independent panel would seek to determine—what is the purpose of retaining the independent panels in the legislation? He cannot have it both ways, with a role for independent safeguards but the view that head teachers are never wrong or inadvertently mistaken.

Nick Gibb: Nothing is black and white, and of course mistakes might be made, but it is important that parents have some recourse if they believe that their child was wrongly excluded. That is the purpose of the independent review panel, which thereby minimises the chance of judicial review. That is the key point: there is an avenue for parents to go down after they have been through the procedures with the school’s governing body, and so on. They can have their day at the independent review panel and that minimises the risk of judicial review, but ultimately none of that process will undermine the authority of the head teacher, and that is what we are trying to protect.

Stella Creasy: I am sorry, I genuinely do not understand the picture the Minister is envisaging. Surely if he is concerned about the head teacher’s authority, a panel that decides that a head teacher has made the wrong decision and yet cannot reinstate the pupil undermines the head teacher as much as a panel that says it was the appropriate thing to do? I am unsure how the Minister thinks this will avoid a judicial review process if a panel consistently finds that a head teacher is making the wrong decisions. Surely that opens up more avenues for judicial review, not less? It seems to be a confused process.

Nick Gibb: It is a review, not a direction, and that is the difference. Authority is not undermined by a panel recommending that the governing body looks again at whether the child should have been reinstated. The authority of the head is undermined by the child that Sally Coates referred to, who having committed a very serious offence then comes back into the school. That is what undermines authority, and it happened on 60 occasions in 2008-09. Therefore, assuming all of those cases were at separate schools, 60 schools have had their authority undermined in one year. That is the problem that we are trying to address with the clause.

Stella Creasy: The Minister has to accept that there is an alternative scenario. In 60 cases, exclusion was the wrong option for the young people. An independent panel identified that as the wrong course of action. He seems to be saying either that, on every incident, the review panel will say that the head teacher had made the right choice, in which case the review panel has no point, or that review panels may say, “This is the wrong choice for this pupil, but we cannot do anything about it.” The young person’s educational choices will be limited as a result, yet they have no recourse to action. The balance does not seem to be right.

Nick Gibb: This is about providing an appeals process that can result in serious consequences for the school if it made a capricious decision. The clause provides three options to the panel. It may uphold the decision, recommend that the body reconsiders it or, if it considers that the decision is flawed, quash the decision and direct the governing body to reconsider. Panels may come to one of three conclusions. If it is the latter, and the governing body reconsiders but decides that relations between the teacher, the head teacher and the child have so deteriorated that despite the quashing of the decision, it still does not want the child to be reinstated, the school or academy will face financial penalties. The money will follow the pupil to the alternative school that they go to.

Pat Glass: I am trying to explore the thinking behind this. I have met independent appeals panels. They are usually made up of professional people, such as ex-head teachers, not Mrs Miggins off the street. They have worked in schools and know the situations. Can the Minister think of any other incident where an independent body of usually similar colleagues and professionals would be disregarded after it had been asked to look at decisions, or where nothing happens after the decision made by a group of people, such as head teachers, is judged to be incorrect by an independent panel?

Nick Gibb: The decisions of the independent review panel will not be disregarded. For example, if the decision is quashed, the child’s record is changed so that the exclusion will not count when they choose a new school. If a child has had two exclusions, the parent will no longer be able to choose the new school that the child will go to, but if the decision is quashed by the independent review panel, that will not count as an exclusion. The child’s record will be amended to show that they have not been excluded. Therefore, if a decision is quashed by the review panel, there will be consequences to alleviate the problem for the child.
The most important thing is that we restore and maintain the authority of head teachers in this country. We have serious behavioural problems in too many of our schools, and we must take some serious action to resolve that. Children are being seriously bullied—there were 20,000 calls to ChildLine last year, and some 340 of the callers were contemplating suicide. We hear from teachers’ unions about the low-level disruption that permeates our schools and results in nearly half of young people leaving secondary education without English and maths GCSEs. The problems that we are trying to address are serious. The measure is one among many. The objective behind it is to restore the authority of head teachers to ensure that we have an ordered environment.

Stephen McPartland: Does the Minister agree that the Bill’s purpose is to try to change the current situation? A pupil, who might be severely bullying someone, perhaps threatening them with a knife or physically attacking them, and whose actions would be subject to criminal proceedings by the police could be reinstated after being excluded by the head teacher and governing body. That could create a difficulty with safety in the school, with the rest of the school and teaching staff not feeling safe. Opposition Members were saying that there would be no penalty if a head teacher was considered to have made the wrong decision, but I thought that there would be a financial penalty under the Bill.

Nick Gibb: My hon. Friend makes a good point. It can be devastating for a victim of a child who was excluded to see that child return. Sometimes that can lead to the child who is being bullied finding themselves unable to attend school because of the presence of the other child. In that situation, the head teacher really does know better.
On the point made by the hon. Member for North West Durham about the expertise of independent appeal panels, some such expertise is to be found on the governing bodies of our schools. Before we get to the independent review panels, we have the route of using the expertise of those professionals to assess the decision of the head at school and governing-body level. The decisions reached by the High Court in a judicial review are often about reconsidering, rather than a direction. We are trying to use the same approach with the independent review panel.

Kevin Brennan: I associate myself with every remark that the Minister has made about the seriousness of bullying and other such behaviour, but we need to test the proposal to see whether it works. The hon. Member for Stevenage rightly pointed out that there are financial penalties under the measure. The Minister has said that the money will follow the pupil into the new placement. If a head teacher refused to reinstate following the quashing of a decision, could the financial penalty exceed the cost of that pupil’s education after he had left the school?

Nick Gibb: I think that I mis-spoke earlier. The penalty will go to the local authority, rather than follow the pupil directly to the alternative provision. We have said that the figure will be in the region of £4,000, which is the approximate value of the average weighted per pupil unit figure.
Having responded to those important interventions, I shall make a little more progress. I have said that we believe that an orderly and safe environment is essential if effective teaching is to take place. We are committed to backing head teachers’ authority when pupils’ behaviour warrants exclusion. The clause will remove independent appeal panels, so that violent and disruptive pupils will no longer be reinstated in schools. We still wish, of course, to ensure that exclusions are carried out fairly and we want to provide safeguards for vulnerable pupils.
The clause establishes new review panels that will have the power to uphold an exclusion, recommend that the governing body reconsider the exclusion, or quash an unreasonable exclusion and direct the governing body to reconsider its decision. Where the panel directs a governing body to do so and it decides not to reinstate a pupil, the panel may order the school to pay a financial penalty of approximately £4,000.

Mark Hendrick: In 60 cases, pupils were reinstated. Can the Minister tell us how many cases were dealt with in total, because I want to get a feel for whether 60 represents a majority or minority?

Nick Gibb: I thought that I gave those figures. I mentioned that in 2008-09, 640 appeals were lodged, of which 590 were heard. Of those appeals, 150—which is approximately a quarter—were determined in favour of the parent, and of those, 60 pupils ended up going back to the original school.

Mark Hendrick: About 10%.

Nick Gibb: Yes—of the original number of appeals lodged.
To ensure that exclusions are carried out fairly and that safeguards are provided for vulnerable people, the clause establishes new review panels that will have the power to uphold an exclusion. We will set out in regulations rules for the handling of the financial penalty. At 4.34 pm on Monday, I circulated to the Committee—[Interruption.] And now it is Thursday—4.34 pm on Monday is not so bad when we are discussing the clause today.

Meg Munn: I can tell the Minister that I checked my e-mails, and mine did not arrive until 4.35 pm. [Interruption.]

Nick Gibb: I will consider my position with regard to giving the Committee false information on that matter.
The regulations set out rules for handling that financial penalty, but we intend it to go to the pupil’s local authority for use in supporting alternative provision. In addition to the penalty, the school will lose the per-pupil funding for the rest of the year, calculated proportionately, and, of course, it will not have the per-pupil funding for the following year for that child.

Kevin Brennan: In a sense, the penalty constitutes a fine against the head teacher for being unreasonable, in the face of a reasonable request to reinstate a child. Is that not the situation the Minister is creating?

Nick Gibb: The hon. Gentleman can call it a fine; I call it what I have called it, which is a financial penalty.

Pat Glass: Does the Minister accept that, for a head teacher, a fine of £4,000, plus the loss of the individual pupil funding, is significantly less in most cases than making provision for a child with significant additional needs? If it is about a balance sheet, it is probably cheaper and easier simply to get rid of such children and refuse to reinstate them—if the reason is financial.

Nick Gibb: We consulted head teachers on this issue. I reiterate my point that we—I should not use the word “fined”—trust head teachers to be professional. I do not believe that they are engaged in balance sheet activities, thinking, “Well, that child is really a problem. Is it worth my while taking that hit?” Every head teacher I have ever met wants to do the best for all their pupils, regardless of a child’s special needs or behavioural problems and so on. Students are excluded only as a last resort, when the school has been unable to help that child with their behavioural problems.

Stella Creasy: I am more perplexed as we go on with consideration of the Bill—and we are only on clause 4. Will the Minister explain why, with the provisions on searching pupils, there is the need to provide powers that might be used rarely, but also the need to recognise the fact that there might be exceptions when it is relevant to do so? Is it not a concern, therefore, that head teachers might look at their balance sheets and see a financial incentive to exclude children with additional needs?

Nick Gibb: That is a judgment we have made, and we have talked to head teachers about the penalty. If it is too high, there is the worry of head teachers having that penalty imposed on them through no fault of their own. Even head teachers who are determined to obey the procedures for excluding a child, and who fully expect any appeal by the review panel to go in their favour, might still be deterred from excluding a child for fear of receiving a large penalty that would affect the school. I think that the balance is right between imposing a penalty for making a decision that is then quashed by the independent review panel, and not deterring head teachers from taking the professional decisions that they feel are in the school’s interests.

Graham Stuart: The Minister says that the school will lose the remaining funding for that pupil. Will he confirm whether that includes the pupil premium?

Nick Gibb: I will get back to my hon. Friend on that, because it is slightly complicated. I can confirm, however, that the per-pupil money, proportionate to the point in the year that the child is excluded, will be lost to the school.
The new panels will be independent of schools, and they will be constituted and run in broadly the same manner as independent appeals panels. One important new safeguard for vulnerable children is that parents will be allowed to request the attendance of a special educational needs expert at the panel, where relevant, and regulations will cover that point. Additionally, parents will be able to bring disability discrimination cases on permanent exclusions to the first-tier tribunal. Parents may continue to bring disability discrimination cases on fixed-term exclusions to the first-tier tribunal, as they have always done. However, as the appeal panel has gone, parents will now be able to take the permanent exclusions to the tribunal, if they so wish.

Pat Glass: Will the Minister accept that very few cases have gone to the SEN and disability first-tier tribunal on the ground of disability? In my experience—I will talk later, when I get the chance, about some cases I have come across that must be described as blatant—parents are so distraught by what has happened that, even when the local authority encourages them to take a case, they feel that they cannot do so. I am not sure that the Bill will make it any easier.

Nick Gibb: We will come to debate such issues under later amendments. I am pleased by our SEN Green Paper, which has been published, because it talks about tackling such issues early and avoiding the adversarial approach we have had over the past 20 or 30 years when dealing with children’s special educational needs.
We intend to apply the new arrangements to academies through regulations. I will speak in more detail about that when we discuss amendments 31 and 32.
One more point for the hon. Lady: disability cases can also go to the independent review panel. They do not have to go to the first-tier tribunal.
Also, responding to my hon. Friend the Member for Beverley and Holderness, the pupil premium is a separate grant, which is not part of the school budget share. The financial penalty will not be an item of expenditure, but a reduction in the school budget share, which would mean that the school will have to reduce its planned expenditure funded from the budget share. Therefore, there is no impact on the pupil premium.

Kevin Brennan: On that point, does the Minister mean that a school choosing to exclude could hold on to the pupil premium being paid for the pupil being excluded, albeit after the decision has been quashed by the review panel?

Nick Gibb: We will keep the issue under review, to see if that should be the case—the pupil premium is a new concept.
We want to support our head teachers fully to maintain classroom disciple through excluding disruptive pupils when necessary, improving the educational experience and attainment both of the students remaining in the class, who suffer fewer distractions, and of those excluded, who will be placed in more appropriate teaching environments. The clause will help head teachers maintain discipline in their schools. There are, however, no additional powers for school staff in the clause—head teachers may already exclude pupils. In view of that, I ask the hon. Gentleman to withdraw his amendments.

Kevin Brennan: That little exchange has raised quite a few issues about the clause and the Government’s approach. Before we decide how to dispose of the amendments and conclude with the group, I have a few questions for the Minister to come back on, if he chooses.
On the consultation with heads that the Minister mentioned, to the best of my knowledge the details are not on the Department’s website. Can he share with us the details of how that consultation took place, which heads were consulted and whether it was done simply through associations or with all heads throughout the country? It was the first I knew of that departmental consultation. I wonder if he could fill the Committee in on the details. Can he share with the Opposition the evidence sent into the consultation by the consultees? As part of the consultation process that the hon. Gentleman had with head teachers about the proposals, did the Minister also consult parents, parents’ groups, young people, children and groups representing them?
Our exchanges revealed an interesting point about pupil premium. It appears—perhaps the Minister can confirm this—that a pupil excluded by a school, if the exclusion is confirmed by the governors, can go along to the review panel, which, if it finds that the pupil has particular needs that were not taken fully in account when the exclusion was made, can send back a quashing, as it is put in the Bill, of the decision made by the head teacher and the governors to exclude the pupil, because insufficient regard was given to the pupil’s circumstances; however, the head teacher can then refuse to reinstate the pupil for some reason, despite the fact that the review panel, using the sort of tests applied in judicial review, has found that it would be unreasonable to do so, and the head teacher taking that decision can be content that the pupil premium associated with the pupil remains in his or her budget. Perhaps I have misunderstood, but that seems to me to be a bizarre outcome.
The Minister said that he is keeping the matter under review, but I suggest it needs more than a review. It would be perverse in the extreme if a pupil was excluded after a review panel had judged that such action was unreasonable and the pupil premium associated with that pupil remained in the school budget. He referred to the figure of £4,000, which will be the financial penalty or the fine—he is not allowed to use that word, but I am—that the school will face for acting in that unreasonable manner. I take his point about wanting to have something that did not leave head teachers in an impossible position, otherwise the proposal would be pointless, but why did he not say instead—taking on board the point made by my hon. Friend the Member for North West Durham—that the financial penalty would be at least the sum calculated by the review panel to be necessary to find the child a suitable placement with suitable support for whatever the special needs that the panel found were so pressing that it quashed the decision of the head teacher to proceed with the exclusion? That would not be unreasonable and it would certainly not constitute a scuppering of the Minister’s policy.
Consideration should be given to the pupil’s interests, particularly if the review panel quashed the decision to exclude the pupil because some circumstances had not been taken fully into account. A financial penalty that was guaranteed to at least cover the cost of finding a suitable placement that meets the needs identified for the pupil seems a much more logical way of looking at the problem. Did the Minister consider that during the consultation, details of which we have not seen? Did he consult on it with head teachers when preparing for the Bill? Before we consider how to dispose of the amendments, will the Minister respond to those points?

Pat Glass: Just for clarification and in an effort to be helpful to the Minister, may I make it clear that the statement of costs of children with SEN can be massive? Some local authorities have £250,000 students. We are not talking about the statemented costs. We are talking about the costs that would normally accrue to a school for meeting the additional needs of a pupil, not those that would come in addition to what any normal school would be able to provide.

Kevin Brennan: As ever, that is a very helpful clarification from my hon. Friend. Given that the pupil and the review panel would have just been through a close examination of his or her needs in considering whether the exclusion ought to be quashed, a wealth of information would be available at that point on what costs would be entailed. That might be a more elegant solution to the Minister’s problem than the one on the face of the bull—Bill! That was not a Freudian slip. I would be grateful if the Minister could respond to those points.

Nick Gibb: I will write to the hon. Gentleman about the consultation, but he should be aware that the White Paper clearly spelled out the proposal for the independent review panel, which we consulted on extensively. The decision on the £4,000 was a balance of simplicity, avoiding complexity and bureaucracy, and giving head teachers the certainty that the worst possible outcome if things went wrong was a penalty of £4,000. Ultimately, the head teacher has to ensure that his school can function within its budget, and when taking decisions, he has to weigh up what can possibly go wrong. We wanted to create certainty and simplicity, and a £4,000 penalty is the best decision, taking into account the average age-weighted unit of funding.

Graham Stuart: One of the most important issues is transparency and visibility of what goes on in schools. Opposition Members are right to ask about situations in which someone is not behaving in the right way. Those people may be a tiny minority, but we need a system that deals with them none the less. As long as it is possible to see the data, people will be able to assess the school. What are the Government’s plans for publicising, on a per-school basis, the data on children excluded for a fixed period or permanently?

Nick Gibb: We will come to those provisions in the course of our debates, but my hon. Friend makes a good point. The problem with exclusions is that the numbers on a per-school basis are very small, and there is always a problem with publishing such small figures, because the convention is that if there are less than a certain number, we put an x in the published data tables, so that pupils cannot be identified. We do that with GCSE results and all kinds of data published by the Department. We are publishing ever more data about schools, such as financial data, because we want to be as open and transparent as possible about all the achievement and expenditure figures available to the Department, which should also be available to schools. I think that I have dealt with the issues the hon. Member for Cardiff West raised, and I ask him again to withdraw the amendment.

Kevin Brennan: Well, I will withdraw the amendment in a moment, because I recognise the point that the Minister made, yet again, about a flaw in the drafting. I apologise to the Committee again for that. The Minister is correct that the amendment might not achieve very much were it to appear in the Bill.

Graham Stuart: It is embarrassing.

Kevin Brennan: It is highly embarrassing. The Chair of the Education Committee is correct about that—not that Government Members were ever in the same position when in opposition.
Before I ask the Committee’s permission to withdraw the amendment, I want to say that as the Minister confirmed, about 60 young people, according to the latest figures we have available, will probably end up in this position in any given year. If the Government majority is going to put the measure through as it stands, the Minister needs to consider whether he first wants to think carefully about what happens to the pupil premium. He said that he will keep it under review, but he may need to do more than that and think a bit more urgently about how it works in the context of the proposal.
Secondly, he needs to look at the fine—he calls it the financial penalty—and tie it more realistically to the needs of pupils who are in those circumstances. I understand his desire to give the strong message that head teachers have been given the authority that they said they needed, but a young person’s life is involved in the head teacher making that decision, which he is doing after a review panel has quashed the exclusion. It is therefore probably pretty logical for the financial penalty to bear some relationship to the cost of providing suitable support to the pupil who is to be excluded despite the review panel’s views. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(James Duddridge.)

Adjourned till Tuesday 15 March at half-past Ten o’clock.